A Wake Up Call Revisited: Read the Rules & Don’t Argue “Not Reasonably Calculated” in Federal Courts

In Canales v. OPW Fueling Components LLC, 2025 WL 553623, at *3 (E.D. N. Cal. Feb. 19, 2025), the court wrote:

Throughout his responses, Canales objects to OPW’s requests on the ground that they are not reasonably calculated to lead to the discovery of admissible evidence. OPW correctly notes that while this was once a valid objection, it has not been an appropriate basis to object to discovery for nearly a decade. Canales may not rely on this objection and must supplement his responses to provide any documents or information withheld on this basis. [Emphasis added].

The phrase was deleted from the Federal Rules of Civil Procedure by the December 2015 amendments. See “Reasonably Calculated to Lead to Discovery of Admissible Evidence” (Nov. 6, 2024).  The Canales court wrote: “Canales therefore cannot rely on this outdated objection to withhold documents or information.”

It has been almost seven years since the Hon. Andrew J. Peck (ret.) wrote: “It is time, once again, to issue a discovery wake-up call to the Bar in this District: the Federal Rules of Civil Procedure were amended effective December 1, 2015, and one change that affects the daily work of every litigator is to Rule 34.”  Fischer v. Forrest, 2017 WL 773694, at *1 (S.D.N.Y. Feb. 28, 2017).

Judge Peck wrote:  “The 2015 amendments thus eliminated the ‘reasonably calculated’ phrase as a definition for the scope of permissible discovery. Despite this clear change, many courts [and lawyers] continue to use the phrase. Old habits die hard…. The test going forward is whether evidence is ‘relevant to any party’s claim or defense,’ not whether it is ‘reasonably calculated to lead to admissible evidence.’” [citation omitted].

His Honor added, in 2017, that:

The December 1, 2015 amendments to the Federal Rules of Civil Procedure are now 15 months old. It is time for all counsel to learn the now-current Rules and update their “form” files.

The wake-up call has been echoed: “[T]he Honorable Andrew J. Peck painstakingly detailed the changes brought on by the 2015 amendments….” Sovereign Cape Cod Invs. LLC v. Eugene A. Bartow Ins. Agency, Inc., 2022 WL 624553, at *3 (E.D.N.Y. Mar. 3, 2022)(noting that it was “time, once again, to issue a discovery wake-up call to the Bar in this District….”).

The Sovereign Cape court noted that “Judge Peck walked through the newly adopted language of Rule 34 and the associated advisory committee notes…  Judge Peck’s shot across the bow of litigators underscored that Rule 34” has been amended. Id.; accord Avila v. Target Corp., 2022 WL 14763013, at *2 (E.D.N.Y. Oct. 25, 2022)(quoting Judge Peck).

On a different, rules-based procedural issue, Canales asserted that “contention interrogatories,” which are permitted by Fed.R.Civ.P. 33(a)(2), were premature.  The Canales court wrote:

This argument is unpersuasive for two reasons. First, the Federal Rules provide that “methods of discovery may be used in any sequence[.]” Fed. R. Civ. P. 26(d)(3)(A). So OPW did not need to wait until a particular point in the proceeding to serve contention interrogatories. Second, Canales failed to establish why the requests were premature. Rule 33’s Advisory Committee Notes recognize that “interrogatories involving mixed questions of law and fact may create disputes between the parties which are best resolved after much or all of the other discovery has been completed[.]” Id. Rule 33 Advisory Comm. Note to the 1970 Amend. But Canales has not shown that is the case here. In any event, Rule 33 allows the court to “order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time.” Fed. R. Civ. P. 33(a)(2). The court believes that it is appropriate for Canales to respond at this time, and orders him to do so.

The rules of procedure are not “mere guides” or “helpful hints.”  Instead, they are “precise rubrics that are to be read and followed….” Colonial Carpets, Inc. v. Carpet Fair, Inc., 36 Md. App. 583, 584, 374 A.2d 419, 420–21 (1977).

The Colonial Carpets Court wrote that procedural rules “are the lawyer’s compass and serve to help him [or her] steer through the narrows of pleading, pass the rocks of default, around the shoals of limitation, and safely into the harbor of judgment. It is a reckless sailor, indeed, who puts to sea without a compass, and it is a reckless lawyer who fails to familiarize himself [or herself] with the Rules of Procedure before he [or she] files and tries a case.”

“Attorneys practicing before this court disregard the Federal Rules of Civil Procedure and Local Rules at their peril.”  Black v. Quest Diagnostics Inc., 2005 WL 8174704, at *2 (D. Md. Nov. 17, 2005).

Maryland’s State court rules continue to use the “not reasonably calculated standard.